USA Today Refuses to Correct its Misrepresentation of My Statements About the Individual Mandate Litigation

I regret that I must report that USA Today refuses to correct the misrepresentation of my views about the individual mandate litigation that I pointed out in this post. I pointed out the mistake in e-mails to Joan Biskupic, the author of the article in question, and the editors of USA Today. Both refused to issue any correction. They did invite me to state my view in a letter to the editor. However, after I sent in the letter, they refused to print it on the grounds that “[i]t is the paper’s policy not to disguise corrections as letters to the editor.” They were only willing to print a heavily redacted version that didn’t clearly indicate the nature of the error that Ms. Biskupic made in her characterization of my supposed “prediction” about what the Court will do. I refused to let them publish the letter under such absurd restrictions. The whole point of the letter was to point and out and correct her mistake.

Here is the original unexpurgated letter:

To Whom it May Concern:

In her April 14 article on the the Obama health care plan individual mandate litigation, Joan Biskupic incorrectly wrote that I had predicted that “the Constitution’s ‘original meaning,’ along with recent cases, would lead a majority of the [Supreme] court to reject the law.”

In reality, I never said any such thing. In the past, I have several times publicly written that the Court is more likely to uphold the law than strike it down, though the anti-mandate side also has a significant chance of prevailing. Ms. Biskupic also erred in stating that I predicted that Justice Anthony Kennedy would necessarily vote to strike down the mandate. I did not say that either.

Finally, Ms. Biskupic omitted crucial context in quoting my statement that “There is no logical way to uphold this mandate.” What I actually said was that “[t]here is no logical way to uphold this individual mandate except by a chain of reasoning that would allow Congress to impose any mandate of pretty much any kind.” The full context shows that I was making a statement about what the Court should do, not what it actually will do.

Sincerely yours,

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law

The only one of my statements at the ACS debate (video available here) that Ms. Biskupic cited in in support of her interpretation of my words is the following:

While it is certainly true that Thomas is willing to go farther in rolling back federal power than the other conservatives on the Supreme Court, I don’t think you have to go as far as Thomas to want to do so. Moreover, people like Scalia and also Kennedy, in recent cases, such as in the Comstock case, and Alito have gone out of their way to signal their commitment to the idea of limiting federal power. … As to Roberts, it’s hard to predict his position on this. I do not think it would be predicted by the preemption cases.

Nothing in the above passage predicts that Kennedy will vote to strike down the mandate. And even if I somehow predicted that Kennedy would do so, I certainly did not predict that the Court as a whole would.

Ms. Biskupic also tried to defend her misrepresentation of my views by noting that she quoted me as saying that Chief Justice Roberts’ vote is difficult to predict. That, however, does not offset her error in stating that I predicted that the Court as a whole would “reject the law.” The reasonable reader of her article is left with the impression that I predicted that the Court would strike down the law, regardless of the fact that Roberts’ individual vote may be hard to predict.

As I said in my previous post on this subject, I don’t blame Joan Biskupic too much for the original mistake. We all make such errors occasionally, especially under the pressure of deadlines. It is much more reprehensible for her and her superiors to refuse to correct an error after it has been pointed out to them in great detail.

Over the last few years, I have often been quoted in the media about both the individual mandate and other issues. To my knowledge, this is the first time that anything I said has been seriously misrepresented. In my experience, most reporters and editors try hard to get the facts right and to correct any errors they might inadvertently commit. Unfortunately, this case is an exception.